Introduction: Three Themes
Legal pluralism is everywhere. In every social arena one examines, a seeming multiplicity of legal orders exists. There are village, municipal, and county laws of various types; there are state, district, or regional laws of various types; there are national, transnational, and international laws of various types. In many societies there are additional forms of law, like indigenous law, customary law, religious law, and the law of distinct ethnic or cultural communities. The contemporary period has witnessed a vast increase in public and private regulatory regimes on various matters at all levels. Coexisting forms of law may be similar in orientation, coordinated with one another, and mutually supportive or complementary; they may make competing claims of authority, impose conflicting norms, and operate through contrasting processes; they may exist wholly apart or thoroughly intertwined. Legal pluralism creates uncertainty because people may not know which legal regime will apply to their situation, and it also creates opportunities for people to opportunistically select from among legal regimes, or to pit one form of law against another in pursuit of their goals. Legal officials in situations of legal pluralism face potential rivals, compete for power and resources, and can be mutually cooperative or antagonistic.
Legal pluralism is everywhere in another sense. First mentioned in the 1960s, references to legal pluralism exploded in ensuing decades as the notion propagated across academic fields from anthropology, to sociology, legal history, comparative law, international law, transnational law, and jurisprudence.1 Two decades after its initial introduction in legal anthropology, in a 1988 overview that significantly boosted its visibility, Sally Engle Merry declared: “Legal pluralism is a central theme in the reconceptualization of the
1 A search in Heinonline reveals very few uses of the phrase “legal pluralism” prior to the 1970s, followed by a rapid increase in the 1980s, 1990s, and thereafter. A Google Ngram of “Legal Pluralism” likewise exhibits a sharp increase in references to legal pluralism in books commencing in the mid1970s in both relative and absolute numbers. https://books.google.com/ngrams/graph?content=% 22legal+pluralism%22&year_start=1800&year_end=2008&corpus=15&smoothing=3&share=&di rect_url=t1%3B%2C%22%20legal%20pluralism%20%22%3B%2Cc0#t1%3B%2C%22%20legal%20 pluralism%20%22%3B%2Cc0
Legal Pluralism Explained. Brian Z. Tamanaha, Oxford University Press (2021). © Brian Z. Tamanaha. DOI: 10.1093/oso/9780190861551.003.0001
law/society relation.”2 More recently, “legal pluralism has become a standard fare in international and comparative law circles.”3 A collection on “pluralist jurisprudence” declared that legal theorists must move beyond their statecentered focus to take account of coexisting forms of law.4
Interest in legal pluralism extends beyond academia. Governments and development agencies have spent several billion dollars to develop state legal systems across the Global South with disappointing results.5 Law and development theory and practice emphasize the importance of the rule of law and economic development. Customary and religious systems of law were seen as parochial, backwards, regressive, and antithetical to women’s rights and human rights. World Bank development experts observed, “Development theorists and practitioners have tended to either blindly ignore the ubiquitous phenomena of legal pluralism or regard it as a constraint on development, a defective condition that must be overcome in the name of modernizing, state building, and enhancing ‘the rule of law.’ ”6 Recently, however, development practitioners “have begun to reexamine some of the underlying assumptions about legal pluralism and to explore the opportunities that might exist in contexts where legal pluralism is a pervasive reality.”7 An international relations theorist focusing on post-conflict situations observed that “Understanding legal pluralism is important for any legal or policy intervention, including but by no means limited to state building.”8
Even as it has secured the attention of growing numbers of scholars and development practitioners, however, the notion of legal pluralism remains mired in complexity, confusion, and disagreement. After reviewing two decades of proliferating literature on legal pluralism jurisprudent William Twining remarked, “I have come away feeling that it is little better than a
2 Sally Engle Merry, “Legal Pluralism,” 22 Law & Society Review 869 (1988).
3 C. Valcke, “Three Perils of Legal Pluralism,” in S.P. Donlan and L. Heckendorn Urscheler, eds., Concepts of Law: Comparative, Jurisprudential, and Social Scientific Perspectives (Farnham: Ashgate, 2015) 123.
4 Andrew Halpin and Nicole Roughan, eds., In Pursuit of Pluralist Jurisprudence (Cambridge: Cambridge University Press 2017).
5 See Stephen Humphreys, Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice (Cambridge: Cambridge University Press 2010) 128–32. Brian Z. Tamanaha, “The Primacy of Society and Failures of Law and Development,” 44 Cornell International Law Journal 209 (2011).
6 Caroline Sage and Michael Woolcock, “Introduction: Legal Pluralism and Development Policy: Scholars and Practitioners in Dialogue,” in Brian Z. Tamanaha, Caroline Sage, and Michael Woolcock, eds., Legal Pluralism and Development: Scholars and Practitioners in Dialogue (New York: Cambridge University Press 2012) 1.
7 Id at 2.
8 Geoffrey Swenson, “Legal Pluralism in Theory and Practice,” 20 International Studies Review 438, 458 (2018).
morass.”9 A factor contributing to the confusion is that scholars from multiple disciplines have invoked the notion of legal pluralism. Each discipline is internally divided into various schools of thought, and academic disciplines differ from one another in their bodies of knowledge, concepts, and objectives. While on the surface it might appear that a single notion of legal pluralism is applied across fields, an impression perpetuated by shared references to the same cluster of theorists (John Griffiths, Eugen Ehrlich, Sally Falk Moore, etc.), different meanings of legal pluralism are being utilized, often unrecognized as such.
Adding to the confusion is the thin meaning and capaciousness of the term pluralism. Pluralism simply means more than one, which can be applied to anything and framed at various levels of specificity and generality. The label legal pluralism has been used to refer to a plurality of interpretations of a single set of laws; to subsystems of law within a single system; to the same tribunals applying distinct bodies of law and separate tribunals applying different bodies of law within a system; to hybrid legal systems that grew out of the interaction between distinct bodies of law; to the coexistence of separate forms of law within a single society; to the coexistence of different subject matter regimes within international law; to the coexistence of multiple legal systems between and across states; and other variations. Each of these examples has been discussed in the literature on legal pluralism, though they are very different.
Complexities and disagreement about the meaning of “law” is another source of confusion. A core proposition across most versions of legal pluralism is that state law is not the only form of law. This assertion requires a definition or concept of law or some way to identify what counts as law as well as to distinguish law from non-law. Legal pluralists have grappled with these threshold issues for five decades now, with multiple concepts of law proposed in the literature, and no end in sight. This struggle is understandable. “What is law?” has never been resolved despite a multitude of attempts by theorists going back centuries. Since each version of legal pluralism is shaped by how law is conceived, there are multiple versions of legal pluralism, each built around a different view of law. The consequence is “a pluralism of legal pluralisms.”10 Legal pluralism is a conceptual mess.
9 William Twining, “Normative and Legal Pluralism: A Global Perspective,” 20 Duke Journal of Comparative and International Law 473, 487 (2010).
10 See Emmanuel Melissaris and Mariano Croce, “A Pluralism of Legal Pluralisms,” Oxford Handbooks Online, April 2017, https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/
This book explains legal pluralism in two senses. First, drawing from history and theory, I explain why and how legal pluralism is a common phenomenon across societies past and present, and I show its consequences. Second, I explain what is involved in theoretical disputes surrounding legal pluralism, and I articulate a way to frame legal pluralism that works for development practitioners, scholars, and theorists. This undertaking poses a formidable challenge. The topic crosses over multiple disciplines and audiences with different interests and concerns, and the literature addressing legal pluralism is enormous and expanding too rapidly to stay abreast of. This book is not a comprehensive review of every situation of legal pluralism and everything written about it in every field, which would fill a never-completed set of volumes. Because legal pluralism is literally everywhere, it is impossible to cover comprehensively. Instead, using illustrative examples, I present legal pluralism in broad strokes that convey the most salient empirical, theoretical, and normative issues and consequences involved, in clear prose aimed at a general audience.
To set up this exploration, in this Introduction I first identify what legal pluralism is framed in opposition to: the image of monistic state law. Next I set forth two streams of legal pluralism: abstract legal pluralism constructed by theorists versus folk legal pluralism understood in social-historical terms. Then I outline three categories of law that appear throughout the book: community law, regime law, and cross-polity law. These are preliminary clarifications of major themes that arise time and again in discussions of legal pluralism, filled out in the course of the book. I close with a brief illustration of legal pluralism.
Monistic State Law
Pluralism can be applied to anything involving more than one. In academic settings it is usually applied by way of contrast to a unity of some sort. “The conceptual logic of pluralism thus pits it dialectically against ‘monism,’ whatever field of human investigation we care to consider.”11 Legal pluralism stands in opposition to the widely held image of monistic state law. “What
9780199935352.001.0001/oxfordhb-9780199935352-e-22; Margaret Davies, “Plural Pluralities of Law,” Halpin and Roughan, supra note 4, at 239.
11 Gregor McLennan, Pluralism (Minneapolis: University of Minnesota Press 1995) 25.
Is Legal Pluralism?” (1986) by John Griffiths, which significantly shaped academic understandings of the topic, identifies this target (though he substitutes the typical label “monism” with “centralism”):
According to what I shall call the ideology of legal centralism, law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions. . . .In the legal centralist conception, law is an exclusive, systematic and unified hierarchical ordering of normative propositions, which can be looked at either from the top downwards as depending from a sovereign command (Bodin, Hobbes, Austin) or from the bottom upwards as deriving their validity from ever more general layers of norms until one reaches some ultimate norm(s) (Kelsen, Hart).12
“Legal centralism is a myth, an ideal, a claim, an illusion.”13 “A central objective of a descriptive concept of legal pluralism,” Griffiths declared, “is therefore destructive: to break the stranglehold of the idea that what law is, is a single, unified and exclusive hierarchical normative ordering depending from the power of the state, and of the illusion that the legal world actually looks the way such a conception requires it to look.”14
The origins of the monist view of law trace back to two main theorists. Jean Bodin articulated an account of absolutist sovereignty in 1576 that claimed the exclusive power to make law: “It is only sovereign princes who can make law for all subjects without exception, both collectively and individually.”15 Thomas Hobbes’s famous Leviathan, 16 published in the mid-seventeenth century, likewise articulates a supreme, indivisible, lawgiving sovereign located in the abstract state. Both accounts were theoretical abstractions and political advocacy, not consistent with actual arrangements at the time. Multiple sources of law existed in their day and the notion of the state was still in early stages of crystallization.17
12 J. Griffiths, “What Is Legal Pluralism?,” 24 Journal of Legal Pluralism 1, 3 (1986). I have omitted his citations to the theorists listed.
13 Id at 4.
14 Id at 4.
15 Quoting Bodin, in Jens Bartelson, “On the Indivisibility of Sovereignty,” 2 Republic of Letters: A Journal for the Study of Knowledge, Politics, and the Arts 85, 87–88 (2011).
16 Thomas Hobbes, Leviathan (Oxford: Oxford University Press 1996).
17 Quentin Skinner, “The State,” in Terence Ball, James Farr, and Russell L. Hanson, eds., Political Innovation and Conceptual Change (Cambridge: Cambridge University Press 1989) 120.
As the state system solidified in ensuing centuries, what originally was an abstract vision of the state monopoly over law became an implicitly held understanding shared by many theorists and the public in advanced capitalist societies. Max Weber’s ideal type of the modern bureaucratic state, which he formulated in the early twentieth century, captures this understanding, as encapsulated in this passage by William Novak:
(1) A rationalized and generalized legal and administrative order amenable to legislative change; (2) a bureaucratic apparatus of officers conducting official business with reference to an impersonal order of administrative regulations; (3) the power to bind—to rule and regulate—all persons (national citizens) and all actions within the state’s official jurisdiction via its laws; and (4) the legitimate authority to use force, violence, and coercion within the prescribed territory as prescribed by the duly constituted government. Unification, centralization, rationalization, organization, administration, and bureaucratization have become the hallmarks of fully developed, essentially modern states.18
State law is unified, hierarchically organized, comprehensive, monopolistic, and supreme over all other orders within society. This is the monistic law state.
Prominent twentieth-century legal philosophers have identified these traits as essential features of law. “Since all legal systems claim to be supreme with respect to their subject-community,” Joseph Raz asserts, “none can acknowledge any claim to supremacy over the same community which may be made by another legal system.”19 Echoing Bodin, Raz posits supremacy as a criterion for the existence of a legal system: “We would regard an institutionalized system as a legal system only if it is necessarily in some respect the most important institutionalized system which can exist in that society.”20 “In a nutshell,” Raz asserts, a legal system is “a system of guidance and adjudication claiming supreme authority within a certain society and therefore, where efficacious, also enjoying such effective authority.”21
18 William J. Novak, “The Myth of the ‘Weak’ American State,” 113 American Historical Review 752, 761 (2008).
19 Joseph Raz, The Authority of Law, 2nd ed. (Oxford: Oxford University Press 2009) 119.
20 Id. at 116.
21 Id at 43.
Dissenting voices over the centuries have challenged this vision of the supreme, unified, monopolistic law state on three main grounds: it is inconsistent with many historical and contemporary manifestations of law, multiple forms of law exist besides state law, and it is normatively problematic. Seventeenth-century efforts at achieving greater state uniformity provoked backlash from local communities. “If God, they argued, had created provinces that were naturally different from each other, it was important that the laws by which they were governed should conform to their distinctive character.”22 Jeremy Bentham criticized Blackstone’s account of the supreme sovereign: “The people may be disposed to obey the command of one man against the world in relation to one sort of act, those of another man in relation to another sort of act, else what are we to think of the constitutional laws of the Germanic body.”23 Otto von Gierke in the late nineteenth century argued that law also exists in social associations, a position influentially reiterated by Eugen Ehrlich a generation later.24 In the early twentieth century, political theorist Harold Laski observed, “We have to admit, so your monist philosopher tells us, that all parts of the State are woven together to make one harmonious whole . . . The unity is logically necessary. . . . Pluralism, in an ultimate sense, is therefore impossible.”25 The monist theory of the state has an affinity with absolutism, Laski warned: “Therefore all order consists in the subordination of the Plurality to Unity, and never and nowhere can a purpose that is common to many be effectual unless the One rules over the Many and directs the Many to the goal.”26 Pragmatist philosopher John Dewey criticized the monist theory of the state as an abstraction that fails to account for myriad variations within and among states.27 Against this vision, he asserted that “temporal and local diversification is a prime mark of political organization,”28 and he advocated “a pluralist conception of the state.”29
Jurists have invoked the monist law state image in conjunction with sovereignty to justify a multitude of dubious assertions and actions. In the
22 J. H. Elliot, “A Europe of Composite Monarchies,” 137 Past and Present 48, 65 (1992).
23 Jeremy Bentham, quoted in H.L.A. Hart, “Bentham on Sovereignty,” 2 Irish Jurist 327, 333 (1967).
24 See Otto Gierke, Basic Concepts of State Law and the Most Recent State Law Theories, 25 University of Wisconsin Studies in the Social Sciences and History 158, 182 (1935); George Heiman, Otto Gierke, Associations and Law: The Classical and Early Christian Stages (Toronto: University of Toronto Press 1977).
25 Harold Laski, “The Sovereignty of the State,” 13 Journal of Philosophy 85, 87–88 (1915).
26 Id at 87.
27 See John Dewey, The Public and Its Problems (Athens, GA: Swallow Press 1954 [1927]) Chapter 2.
28 Id at 47.
29 Id at 73.
past, ideas about sovereignty and monist law provided key justifications for Western colonization, seizing land, and disregarding indigenous law in settler countries. Today the monist law state is an implicit standard widely held by jurists for what a properly constructed system of law consists of, deeming anything that departs from this image inherently flawed and in need of rectification.
One objective of this book is to dislodge the image of the monistic law state. In setting after setting throughout history and today, I show, the monistic view of the law state is descriptively inaccurate and theoretically unsound, and has been applied in normatively problematic ways. Chapter One discusses empires over the last two millennia that secured imperial rule while leaving community laws in place; the decentralized multiplicity of law in medieval Europe; the millet system in the Ottoman Empire under which people utilized their own religious law and institutions; extraterritorial courts that European powers created in faraway lands well into the twentieth century; and the British East India Company, which administered separate systems of laws and courts for expatriates, Hindus, and Muslims. Chapter Two examines European colonization, which created transplanted state legal systems alongside pre-existing bodies of customary and religious law, and brought workers from outside in large numbers for plantations and mining, creating a wave of legal pluralism across the Global South that remains entrenched today. These two chapters demonstrate that the monist law state is a recent invention inconsistent with many manifestations of law.
Legal theorists are wont to dismiss counter-examples like these as exceptions, deviations, or corruptions that do not challenge their image of the monist law state, which they take for granted as the central case of law. “It is part of the very idea of a central case that there still might be cases (even statistically preponderant cases) that do not exhibit all the features that make the central case the central case,” wrote legal philosopher John Gardner.30 Similarly, Dennis Galligan observed, “Theorists ought to direct their minds to corrupt, defective, exceptional, or marginal legal systems, but having done so, are likely to conclude . . . that they make no difference to the concept.”31 Historical instances of legal pluralism and law in the Global South are exotic and interesting, a legal theorist might conclude, but can be adjudged defective or corrupt, not sufficient grounds to question the image of the monist
30 John Gardner, Law as a Leap of Faith (Oxford: Oxford University Press 2012) 152.
31 Denis J. Galligan, “Concepts in the Currency of Social Understanding of Law: A Review Essay on the Later Work of William Twining,” 35 Oxford Journal of Legal Studies 373, 392 (2015).
law state. What legal theorists project, however, is a highly idealized image of law that does not comport with reality.
Bringing the examination closer to home, making it harder to dismiss, Chapters Three and Four shift to Western legal systems to expose a variety of legally pluralistic contexts contrary to the monist law state. Chapter Three describes legal institutions of Romani (Gypsy) communities across Europe; indigenous law in New Zealand, Canada, Australia, and the United States; and Rabbinical Courts and Sharia Tribunals in the United States and United Kingdom. Chapter Four examines state law within the United States legal system(s), showing that law is not fully unified and hierarchically organized, a condition that also exists within highly developed national legal systems across Europe. European Union law, applied in the Court of Justice of the European Union as well as in national courts, exists alongside the laws and constitution of each nation, applied by national constitutional and high courts, and added to the pluralistic mix is the European Convention on Human Rights applied by the European Court of Human Rights. Thereafter, I convey the contemporary proliferation of transnational law and regulation in public, private, and hybrid forms, many of which are neither wholly national law nor international law.
These various legal arrangements, I show again and again, are incompatible with the monist law state image in two fundamental respects: state law does not have a monopoly over law within society and state law is not organized as unified hierarchical wholes. My positive account of law replaces the monist image in both respects: showing that state law coexists with other forms of collectively recognized law, and offering a descriptive account of state legal regimes as complexes of innumerable distributed legal institutions throughout society that work in the aggregate, with various interconnections, though not as unified wholes.
These examples and varieties of legal pluralism—external to, internal to, and intermingled with state law—are presented to persuade jurists, theorists, and law and development practitioners to set aside the vision of the monist law state and be open to new ways of conceiving of law that recognizes the pervasiveness of legal pluralism and the variety of ways law exists within, across, and outside of state systems. Legal institutions of various types exhibit varying extents of coordination, cohesion, competition, and conflict.
Discarding the monistic image of law is important not just for theoretical purposes, and to improve our understanding of law as a social phenomenon, but it also has policy implications. Jurists engaged in law and
development activities have long assumed that law across the Global South will, and should, one day evolve toward unified state legal systems. This study offers abundant reasons to believe the imagined evolution toward state law monism will not occur for many generations, if at all. To grasp these situations, law must be conceived of in more variable and pluralistic terms that exist for endemic underlying reasons, not as temporary aberrations.
Abstract Legal Pluralism versus Folk Legal Pluralism
Scholarly discussions of legal pluralism commonly use a distinction first articulated by Griffiths between “weak” and “strong” legal pluralism (relabeled “classic” and “new” by Merry32). When Griffiths published his programmatic essay, the term legal pluralism had been used for two decades to refer to postcolonial societies that recognized customary and religious forms of law. He argued that this “weak” legal pluralism is actually a manifestation of legal centralism because it is a product of state recognition. “ ‘Legal pluralism’ in the weak sense has little to do with the concept of legal pluralism which is the subject of this article,”33 he declared, sharply distancing his concept from studies of postcolonial law. His essay centers on “strong” legal pluralism based on a sociological concept of law independent of the state—“an empirical state of affairs, namely the coexistence within a social group of legal orders which do not belong to a single system.” As Merry noted, these two contexts of legal pluralism “make odd companions” in that they have different targets and “they come out of different scholarly traditions.”34
The strong-weak distinction is frequently invoked by scholars, along with Griffiths’s argument that only strong is genuine legal pluralism, whereas weak is not. Theorist Ralf Michaels remarked, “Griffiths’s emphasis that the character of law should not depend on recognition by the state has been hugely influential within the literature on legal pluralism.”35 Despite its success, the strong-weak distinction is flawed and distorting. Many situations of legal pluralism covered in this text do not map onto his dichotomy between state recognition (weak) versus independent law
32 Merry, supra note 2, at 872–74.
33 Griffiths, supra note 12, at 8.
34 Merry, supra note 2, at 874.
35 Ralf Michaels, “Law and Recognition—Towards a Relational Concept of Law,” in Nicole Roughan and Andrew Halpin, eds., In Pursuit of Pluralist Jurisprudence (Cambridge: Cambridge University Press 2017) 99.
(strong). Customary and religious forms of law often exist independently through ongoing cultural processes and the state recognizes them for various reasons, and often they are intertwined unofficially and officially. The coherence of his strong-weak distinction, furthermore, depends on his scientific conception of law, which does not work, as Griffiths himself came to acknowledge when he later repudiated legal pluralism (for reasons explained in Chapter Five).36
A more illuminating distinction can be drawn between what I call “abstract legal pluralism” and “folk legal pluralism,” which I elaborate in Chapter Five. Abstract legal pluralism is the product of social scientists and legal theorists whose aim is to provide a scientific or philosophical theory of law;37 folk legal pluralism understood in social-historical terms focuses on forms of law collectively recognized by people in society, which vary and change over time. Scientific and theoretical concepts of law and legal pluralism are plagued by irresolvable problems, which I detail. This book articulates and applies social-historical folk legal pluralism.
There are numerous versions of abstract legal pluralism, but they share several basic similarities. First, every theory formulates or identifies a concept or definition of law. These concepts of law can be grouped in one of two broad categories: law as normative ordering within social groups, and law as institutionalized norm enforcement. Another common trait of abstract legal pluralism is that the plurality they center on is a multiplicity of a single form of law theoretically defined, not a multiplicity of different kinds of law. Another trait is that each theory takes a ubiquitous social phenomenon (normative orders, institutionalized rule systems) and relabels it as “law,” now theoretically understood. This move leads to another common trait: all versions of abstract legal pluralism suffer from over-inclusiveness by including social phenomena that do not appear to be law. Merry raised this troubling issue in her review of legal pluralism: “Where do we stop speaking of law and find ourselves simply describing social life?”38 For reasons I explain in Chapter Five, legal pluralism is still plagued by this problem today, three decades after she flagged it.
36 John Griffiths, “The Idea of Sociology of Law and its Relation to Law and to Sociology,” in Michael Freeman, ed., Law and Sociology (Oxford: Oxford University Press 2006) 63–64.
37 John Griffiths, “The Division of Labor in Social Control,” in Donald Black, ed., Toward A General Theory of Social Control, vol. 1 (New York: Academic Press 1984) 39.
38 Merry, supra note 2, at 878.
Folk legal pluralism proceeds in a different fashion and produces a wholly different account of legal pluralism. It does not formulate a scientific or philosophical concept of law. Law is ultimately a folk concept. Folk legal pluralism identifies law by asking what people in a given social arena collectively recognize and treat through their social practices as law (recht, droit, lex, ius, diritto, prawo, etc.). Sharia and Halakhah are law because Muslims and Jews, respectively, recognize that as law. In contrast to abstract legal pluralism, which centers on a multiplicity of a single phenomenon defined as law, folk legal pluralism is about a multiplicity of different forms of law collectively recognized by people within society (state law, customary law, religious law, etc.), as well as a multiplicity of the same kind of law. This approach does not relabel social phenomena, but instead accepts the collective identification of law by people within the community, and consequently it is not plagued by over-inclusiveness.
Another crucial set of differences arise from these contrasting presuppositions, methods, and orientations. Abstract legal pluralism abstracts from a paradigm of law to produce a singular concept or definition with a fixed set of defining features that purportedly provides a standard for what qualifies as law in all contexts. The social-historical theoretical perspective I apply to folk legal pluralism, in contrast, does not formulate an abstract concept of law with a single set of defining features, but instead accepts that collectively recognized manifestations of law vary widely and change over time in connection with surrounding social, cultural, economic, political, technological, and ecological circumstances.39 Sharia takes a different form in an Islamic theocracy than it does in liberal democracies. Contrary to the abstract monist theory of the law state, John Dewey observed, this perspective entails “a consistently empirical or historical treatment of the changes in political forms and arrangements, free from any overriding conceptual domination such as is inevitable when a ‘true’ state is postulated.”40
One of the objectives of this book is to expose the irresolvable problems thrown up by abstract legal pluralism and to demonstrate the soundness of folk legal pluralism understood in social-historical terms. Illustrating its usefulness, the first four chapters utilize folk legal pluralism without stumbling over theoretical difficulties. The conceptual issues revolving around abstract legal pluralism and folk legal pluralism will be elaborated in detail in Chapter
39 For an account of this view of law, see Brian Z. Tamanaha, A Realistic Theory of Law (New York: Cambridge University Press 2017).
40 Dewey, supra note 27, at 46.
Five. Suffice it to say here that much of the morass surrounding legal pluralism is created by abstract legal pluralism.
Community Law, Regime Law, Cross-Polity Law
Three categories are useful in tracking law across the many different situations addressed in the course of this book: (1) basic laws and institutions of social intercourse within communities addressing property, personal injuries, marriage, divorce, sexual restrictions, inheritance, debts and obligations, and others; the body of rules people utilize in their daily social interaction; (2) regime laws that constitute, support, and enforce the power of the governing regime, including taxation and customs fees, forced labor and military service, laws against sedition, border controls, and much more, with governing regimes frequently nested within or encompassing in whole or part other sub-regimes; (3) laws that deal with matters between and across organized polities, including national law, international law, and transnational law. These categories are based on rough distinctions that emerge from the observation of folk law phenomena across contexts and over time. For ease of reference, I descriptively label these categories, respectively, community law, regime law, and cross-polity law.
Many manifestations of legal pluralism past and present involve juxtapositions among and between manifestations of these three categories of law. The consolidation of the state system across Europe that began to accelerate in the sixteenth century involved a concerted push by state legal officials to encompass community, regime, and cross-polity laws within the unified territorial state. Ruling regimes over homogeneous societies find it easier to enact comprehensive, uniform bodies of administrative, criminal, and civil law applicable to everyone. Ruling regimes over heterogeneous societies with significant populations of different cultural and religious communities must somehow accommodate, officially or unofficially, legal differences across these communities.
An especially fecund source of legal pluralism, which appears time and again in this text, is the resilience of the basic laws and institutions of social intercourse within the community that exist alongside regime law. Empires throughout history have enforced laws that furthered the objectives of the ruling regime while not interfering with community law. Versions of this occurred with European colonization of Africa, the Middle East, Asia, and
the Pacific. This legacy still exists today, as described in a report issued by the World Bank legal department:
In many developing countries, customary systems operating outside of the state regime are often the dominant form of regulation and dispute resolution, covering up to 90% of the population in parts of Africa. In Sierra Leone, for example, approximately 85% of the population falls under the jurisdiction of customary law, defined under the Constitution as “the rules which, by custom, are applicable to particular communities in Sierra Leone.” Customary tenure covers 75% of land in most African countries, affecting 90% of land transactions in countries like Mozambique and Ghana. . . . In many of these countries, systems of justice seem to operate almost completely independently of the official state system.41
These situations are pluralistic in two senses: multiple communities exist side by side within the territory of a state each following their own customary or religious (community) laws; and state (regime) law enacts its own set of laws on the same matters, from which customary and religious law often diverges. Recognizing that manifestations of law can vary in connection with surrounding factors makes it possible to observe continuities in bodies of law even as they undergo changes. Consider that customary law in small-scale hunter-gatherer societies often did not involve institutionalized enforcement; in more populous organized societies, like chiefdoms and early states, community laws were enforced by institutions established by the ruling regime. The former situation is community law with no regime law; the latter is regime law that encompasses community law. Cross-polity law has changed over time as well: what began several millennia ago as specific covenants between two polities on matters like treatment of emissaries and foreign merchants, today involves a profusion of regulatory activities between and across polities. Continuity and change also occur in particular bodies of law in relation to surrounding circumstances. For over two millennia, Jewish community law—Halakhah enforced by rabbinical courts—has been subjected to a range of treatment by the governing polity: from repression to ignored to recognition and enforcement. Across these divergent treatments and institutional arrangements, whether underground or with official
41 Leila Chirayath, Caroline Sage, and Michael Woolcock, Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems (World Bank Legal Department Paper 2005) 3.
regime support, many Jewish communities have continued to live in accordance with Halakhah.
Forms of community law, regime law, and cross-polity law are rooted in traditions, manifested in ongoing institutions, and continuously change subject to surrounding influences. Folk legal pluralism takes each form of law on its own terms, follows their historical development, and examines their interconnections (or disjunctions) with surrounding cultural, social, economic, ecological, technological, and political aspects of society as well as their interaction with other forms of law within the same social arena. This lens enables a rich understanding of legal pluralism.
A Snapshot of Legal Pluralism
This brief snapshot helps set the stage for the exploration of legal pluralism that follows. Thirty-five years ago I moved to Yap in the Federated States of Micronesia to assume an Assistant Attorney General position in a newly independent country carved out of the former Trust Territories of the Pacific Islands administered by the United States. The state laws and legal system were transplanted from the United States, including nearly all of the lawyers and high court judges working within the system, who were occupied mainly with government matters and commercial activities, as well as occasional major crimes. In daily social intercourse in the villages people largely followed customary law administered by chiefs, including matters of property, marriage and divorce, and personal injuries, often on terms not reflected in state law. The populace had little knowledge about state law, which was written in American legalese they did not understand, and on the outer islands the state legal system had virtually no presence. The state and national constitutions officially recognized custom and tradition, but had limited interaction with it. A de facto bifurcation (albeit not sharp or fixed) existed between customary law followed within the community and a state legal system mainly occupied with government affairs and major commercial transactions. The arrangement worked cohesively for the most part, each dealing with its own matters, though occasions arose when the two systems came into direct clash.
In two separate incidents a month apart a teenage boy raped a girl. Thereafter, the community of each of the victims met in a customary gathering to discuss what should be done in response. The traditional leaders at
